Whitman v. People
| Decision Date | 27 October 1969 |
| Docket Number | No. 23234,23234 |
| Citation | 460 P.2d 767,170 Colo. 189 |
| Parties | Joel K. WHITMAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
William Chisholm, Public Defender, Edward H. Sherman, Public Defender, Joseph R. Quinn, Asst. Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John W, Moore, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.
Joel K. Whitman was convicted of first degree murder and robbery and sentenced to a term of imprisonment in the state penitentiary. His motions for new trial were denied and both convictions were affirmed by this Court on writ of error. Whitman v. People, 161 Colo. 117, 420 P.2d 244; Whitman v. People, 161 Colo. 110, 420 P.2d 416. Thereafter, Whitman filed a motion under Colo.R.Crim.P. 35(b) with the District Court of the City and County of Denver alleging certain violations of his constitutional rights during the course of both of his trials. This motion was denied without a hearing being granted the defendant. Whitman contends that the trial judge was in error in failing to grant a hearing on the questions of (1) the voluntariness of certain confessions made by him and used in his trials, and (2) the extent to which his in-court identification was influenced by an allegedly suggestive lineup. We hold that Whitman's second question was properly denied without a hearing, but we decide that a hearing must be held on the first question and reverse the decision of the trial court thereon.
Rule 35(b) provides that a motion under the rule may be dismissed without a hearing in the case where the motion, the files, and the record show to the satisfaction of the court that the prisoner is not entitled to relief. It was on the basis of this provision that the trial judge denied Whitman a hearing.
The trial judge ruled that both questions presented by the defendant were of a kind that was subject to review on the writs of error previously filed in this Court and, therefore, could not form the basis for a motion under 35(b). In doing so, the judge relied on the case of Hudspeth v. People, 151 Colo. 5, 375 P.2d 518.
This Court no longer follows the rule of the Hudspeth case. In People v. Bradley, Colo., 455 P.2d 199, 200, the court stated:
* * *'
It is conceded by both parties that the questions concerning the confessions and the lineup identification were not raised or decided in either of Whitman's writs of error. Therefore, the judge was in error in concluding for this reason that neither question could form the basis for relief under 35(b).
Whitman was involved in a high speed automobile chase while fleeing from the scene of a robbery. The chase ended when the vehicle driven by Whitman collided with another at an intersection with considerable force. Whitman was taken to Denver General Hospital for emergency treatment and was retained there for twelve days before being released. Immediately following his arrival at the hospital and at other times during his treatment, Whitman was questioned by police officers and made certain statements, some incriminating and some exculpatory. These statements were admitted into evidence during both of defendant's trials without any objection by the defendant directed toward their voluntariness and without any judicial determination on that question appearing in the record.
Counsel for the People argue that the judge was correct in denying Whitman's motion without a hearing on the voluntariness of his confession because the record reveals that he had waived his right to challenge the confessions by failing to object to their use at trial, in his motion for new trial, or on writ of error.
It is the duty of the trial judge to determine whether or not a confession was voluntarily made. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Compton v. People, Colo., 444 P.2d 263. The defendant has a constitutional right at some stage in the proceedings to object to the use of a confession and have a fair hearing and a reliable determination on the issue of voluntariness. Jackson v. Denno, Supra; Compton v. People, Supra. It is not necessary that there be an express objection by the defendant to the admission of the confession by a motion to suppress or by contemporaneous objection. The trial judge is required to conduct a hearing when it becomes evident to him that voluntariness is in issue. An awareness on the part of the trial judge that the defendant is questioning the circumstances under which the statements were obtained is sufficient. Jackson v. Denno, Supra; Baker v. People, 305 F.Supp. 154 (D.Colo., filed Aug. 18, 1969).
In the present case, counsel for the defendant cross-examined the officers who had taken the statements on Whitman's mental and physical condition at the time the statements were taken and whether he had been given any medication. The trial judge should have been aware at this point that the voluntariness of the statements was in issue, and an In camera hearing on that issue should have been held with a determination by the judge appearing clearly in the record. Failure to so proceed violated the constitutional right of the defendant to due process of law as set out in Jackson v. Denno, Supra.
After his removal from Denver General Hospital and twelve days after the robbery and accident, Whitman was taken to the Denver City Jail where he was placed in a lineup for purposes of identification. He alleges in his motion that while the other men in the lineup...
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